The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS [DOC. 134] AND CERTIFICATE OFAPPEALABILITY
On December 23, 2009, Petitioner Lawrence Ponce DeGracia, a federal prisoner proceeding pro se, started this habeas corpus proceeding under 28 U.S.C. § 2255. Respondent United States of America opposes. The Court decides the matter on the papers submitted and without oral argument. See CivLR 7.1 (d.1). For the reasons stated below, the Court DENIES the petition [Doc. 134] and DENIES a certificate of appealability.
Petitioner has three criminal cases arising out of the Southern District of California. First, in 1990, Petitioner was charged with drug offenses in Criminal Case No. 90CR0977. (Gov. Opp'n. [Doc. 138], 2:21-22.) On March 5, 1991, Petitioner entered a Tendered Plea Agreement that deferred entry of a guilty plea on the condition that he not violate any federal, state or local law. (Resp. to Gov. Opp'n. [Doc. 139], Ex. 1 at 15:21-26.) The agreement also provided that if Petitioner successfully fulfilled these terms, the Government would move to vacate the plea and dismiss the superseding information. (Id., 15:26-28, 16:1-4.)
After entering the Tendered Plea Agreement, Petitioner failed to appear at a hearing and was consequently indicted for Bail Jumping in Criminal Case No. 94CR0371. (Gov. Opp'n., 2:22-23.) Petitioner remained a fugitive from 1994 to 2005, and continued violating federal law. (Id., 2:23-24.)
In 2005, Petitioner was captured and indicted on drug trafficking and money laundering charges in Criminal Case No. 05CR1638. (Gov. Opp'n., 2:24-25.) On June 25, 2007, Petitioner entered into a Plea Agreement, and agreed to plead guilty to one count of knowingly and intentionally conspiring with others to possess methamphetamine, a Schedule II controlled substance, with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 846. (Plea Agree. [Doc. 126], 1:24-28.) The parties also agreed that the Sentencing Guidelines should be computed to result in an adjusted offense level of 29 (Id., 7:24), and that the parties would not recommend any departures, including any criminal history departures under USSG § 4A1.3 (Id., 9:4-6). The parties further agreed that Petitioner should receive a mandatory minimum of 10 years in prison and a term of supervised release of at least 5 years. (Id., 4:2-11).
On October 30, 2007, Petitioner's sentencing hearing was held and he was sentenced to 136 months imprisonment followed by 5 years of supervised release. (Judgment [Doc. 131], 2-3.) On December 23, 2009, Petitioner commenced the present section 2255 proceedings, and Respondent filed an opposition on June 30, 2010. On August 9, 2010, Petitioner filed a response.
Petitioner moves to vacate, set aside, or correct his sentence, alleging five grounds for relief: 1) that Petitioner was "deprived of prima facie Constitutional rights by the unconstitutionality of U.S.C. 841 as applied to him;" 2) that the "court admitt[ed] evidence . . . which had been banned by the statute of limitations;" 3) that "the district court's failure to consider numerous errors in enhancing appellant rendered his sentence unreasonable;" 4) that because his sentence is disproportionate to the crime, it violates the Eighth Amendment; and 5) that the court "lost . . . subject matter jurisdiction of the presentencing report investigation [because it] contains constitutional errors." (Pet., 6-7.) Respondent contends that Petitioner's claims of error are unfounded, and that he waived his right to collaterally attack his sentence pursuant to the Plea Agreement. For the following reasons, the Court finds that Petitioner waived his right to collaterally attack his sentence and, therefore, need not evaluate Petitioner's claims.
Courts have repeatedly upheld the validity of appeal waivers finding that "public policy strongly supports plea agreements." United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990); see also Brady v. United States, 397 U.S. 742, 752 n. 10 (1970); United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). Courts will enforce a petitioner's appeal waiver if (1) the waiver is knowingly and voluntarily made; and (2) the waiver, by its terms, waives the right to appeal. United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000).
First, a valid waiver requires that the petitioner agreed to its terms knowingly and voluntarily. See id. A reviewing court looks to the circumstances that surround the plea agreement's signing and entry to determine whether a defendant agreed to its terms knowingly and voluntarily. See United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 2000).
In the present case, Petitioner responds that his appeal waiver is not effective for two reasons. Petitioner first asserts that a miscarriage of justice occurred which negates his waiver of appeal. (Resp. to Gov. Opp'n, 12.) This argument is based on Petitioner's contention that "the Government broke the spirit of the [Tendered Plea] Agreement by prosecuting him and declaring him a fugitive from justice." (Id., 12.)
However, the Tendered Plea Agreement required Petitioner to not violate any federal, state or local laws. Petitioner violated the agreement when he jumped bail and continued breaking the law. The Tendered Plea Agreement, therefore, is null and void, and Petitioner's claim that there has been a miscarriage of justice lacks merit.
Petitioner next argues that he did not knowingly and voluntarily agree to the terms of the Plea Agreement. (Resp. to Gov. Opp'n., 2.) Specifically, Petitioner alleges that his regular attorney was replaced by new counsel at the last minute, and that his last minute appointed counsel did not explain the agreement to ...